Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Nelson County Board of Education properly denied Donald D. Goodin's October 20, 2011, request for a copy of the "Extra Duty Salary Schedule that was discussed at the October 18 meeting and tabled." Because the document discussed at the October 18 Board meeting was a draft of the Extra Duty Salary Schedule, it fell within the parameters of KRS 61.878(1)(i), 1 and the Board did not violate the Open Records Act in denying Mr. Goodin's request. Having so concluded, we remind the Board that, in general, "[n]o purpose is served by asserting confidentiality relative to matters publicly discussed," 10-ORD-032, p. 6, and that the exceptions to public inspection codified at KRS 61.878(1)(a) through (n) are "a shield and not a shackle." OAG 79-275, p. 3. The Board is therefore free to waive the exception for preliminary drafts and disclose the Extra Duty Salary Schedule even though it has not been finalized.
In 00-ORD-195, the Attorney General affirmed a university's denial of a request for a draft report relating to its compensation classification system on the basis of KRS 61.878(1)(i) because the data collection process was ongoing and the report was subject to revision. A copy of that open records decision is attached hereto. At page 8 of the decision, we characterized the requested record as "a tentative version, sketch, or outline of a formal and final written product" and rejected the argument that because the draft report had been discussed at one or more public forums it forfeited its preliminary status. Under this line of reasoning, the Board was authorized to withhold the Extra Duty Salary Schedule notwithstanding the fact that it was discussed at its October 18 meeting. See also 05-ORD-050.
Nevertheless, this office has recognized that "the purposes supporting [KRS 61.878(1)(i)] are not served when the . . . tentative version proposed [is] discussed at an open, public meeting . . . ." 10-ORD-032, p. 5. In the latter open records decision, a copy of which is enclosed, the record on appeal reflected that the draft document discussed in an open meeting "represent[ed] a group consensus." 10-ORD-032, p. 6. Although the record before us does not reflect that the Nelson County Board of Education has reached consensus on the proposed Extra Duty Salary Schedule, and 10-ORD-032 is therefore factually distinguishable, the Board may elect to waive KRS 61.878(1)(i) since the record has been publicly discussed, the likelihood that a significant governmental interest will be compromised is correspondingly reduced, and the public's interest in monitoring future discussion in an informed manner will be better served.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Donald D. GoodinTim HockensmithArch C. McKay, III
Footnotes
Footnotes
1 KRS 61.878(1)(i) authorizes public agencies to withhold:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.